Builder still had not produced a C of O after seven years. Two families separately contracted with Giovanni Culotta to build semi-attached homes at 243 and 245 Elm Street in Staten Island. In May 1998, both families closed and received temporary certificates of occupancy with an understanding that Culotta would later provide a final certificate. Buildings’ records indicate the last temporary certificates of occupancy expired in 1999. Subsequently, Buildings issued violations to the families for occupying their homes illegally and, after a hearing at the Environmental Control Board, both families paid the imposed penalties.

In 2002, the families sued Culotta for breach of contract, claiming he had failed to provide final certificates of occupancy. At trial, Culotta admitted that after seven years he still had not delivered final certificates, claiming his delay was due to his very busy schedule.

Judge Philip A. Straniere ruled that Culotta breached his contract, finding that seven years was unreasonable and shocked the conscience. Judge Straniere ordered Culotta to produce final certificates by August 15, but delayed awarding the families damages until it was determined what expenses, if any, were incurred by them to bring the homes into compliance and obtain final certificates.

Judge Straniere then considered other available remedies. He ordered Buildings to appear at a hearing to determine whether the two families should use the courts to enjoin Buildings from issuing any new violations against them for their illegal occupancy. The court also questioned why Buildings had failed to seek civil remedies against Culotta for his role in placing the two families in an illegal occupancy, why Buildings had not imposed civil penalties against Culotta on all projects for which he failed to obtain a final certificate of occupancy, and why Buildings should not temporarily revoke any outstanding building permits issued to Culotta. The court reasoned that if Culotta was unable to obtain permits, he would be less busy and could find the time to obtain the long-overdue final certificates of occupancy for the two families.